Amolda v. Qopalan
1961Present: Tambiah, J.
MRS. BOBBY ARNOLDA (Bobby Amolda Travel Service), Petitioner,
and N. R. GOP ALAN, Respondent
S. C. 687, with Application 175—M. C. Colombo, 44223[A
Industrial dispute—Jurisdiction of Labour Tribunal and Magistrate's Court—Death ofemployer—Claim by workman for wages, etc.—Liability of employer's legalrepresentative—Industrial Disputes Act (Cap. 131), as amended by Act No. G2 of1957, 88. 31B (1) (2) (3) (4) (6), 33 (2) — Revisionary powers of Supreme Court.
In an application made by a workman after the death of his employer, aLabour Tribunal has no jurisdiction under the Industrial Disputes Act to ordertho widow or legal representative of the deceased employer to pay the workmanany wages, compensation or gratuity due to the workman for tho period ho wasemployed under the deceased. Such an order cannot be enforced by a Magis-trate’s Court under section 33 (2) of tho Act, even if it was made by tho LabourTribunal with the consent of parties.
The Supreme Court has wide revisionary powers over orders made byMagistrates without jurisdiction.
Appeal, with application in revision, against an order of theMagistrate’s Court, Colombo.
H. V. Perera, Q.C., with G. F. Sethukavaler, for the Petitioner.
G. S. Barr Kumarakulasinghe, with Bala Nadarajah, for the Respondent.
Cur. adv. vult.
TAMBIAH, J.—Arnolda v. Oopalan
December 12, 1961. Tambiah; J.—
The petitioner has made this application to revise the order of thelearned Magistrate, dated 3rd April 1961, directing the petitioner topay a sum of Rs. 2,073/50 cts. to the respondent.
The respondent was.employed by the late Mr. Bobby Arnolda, the.husband of the petitioner, as an employee in a transport business whichwas run under the name and style of Bobby Arnolda Travel Service. Onthe 31st of August 1958, Mr. Bobby Arnolda died and the petitioner, byletter dated 2nd September 1959, informed the respondent that thelatter’s services had ceased in view of the death ot her husband.
The respondent, through the Ceylon Motor Workers Union, made anapplication to the Labour Tribunal in Colombo making the petitioner,the widow of the late Mr. Bobby Arnolda, a respondent. In thatapplication the respondent claimed wages, compensation and gratuityfrom the petitioner for the period he was employed under Mr. BobbyArnolda.
As a result of the settlement arrived at between the petitioner and therespondent, the petitioner agreed to pay the respondent the sum ofRupees 2,073/50 cts. on behalf of the estate of the late Mr. BobbyArnolda. Thereupon, the President of the Labour Tribunal ordered thepetitioner to pay the sum to the respondent on or before the 10th ofNovember 1960.
The learned Magistrate of Colombo, purporting to act under section33 (2) of the Industrial Disputes Act (Chapter 131 of the LegislativeEnactments (1956 Ed.), as amended by Act No. 62 of 1957) ordered thepetitioner to pay the agreed sum to the respondent. The petitionerprays that this order was made without jurisdiction and asks this Courtto revise this order.
It was urged on behalf of the petitioner that the learned Magistratedid not have jurisdiction to make the order made on 3.4.1961, whichdirected the petitioner to pay the said sum to the respondent since theLabour Tribunal itself had no jurisdiction to make an order compellingthe petitioner, who is the widow of the late Mr. Bobby Arnolda, to paythe claim of the respondent. The petitioner’s counsel argued that theIndustrial Disputes Act, as amended, empowered the Labour Tribunalto make an order against “ an- employer or ex-employer who loas livingat the time the application was made. ”, and that there is no provisionin the statute which enables an employee to make an application againstthe legal representative, executor de son tort, or the widow of theestate of an employer or an ex-employer who was dead at the time theapplication was mado before the Tribunal.
TAMBIAH, J.—Amolda v. Gopalan
An examination of the relevant provisions of the Industrial DisputesAct, as amended by Act No. 62 of 1957, bears out the contention of thecounsel for the appellant. Section 31(6) of the Industrial Disputes Act,as amended by Act No. 62 of 1957, enacts as follows :
“ (1) A workman or a trade union on behalf of a workman who is amember of that union may make an application in writing toa Labour Tribunal for relief or redress in respect of any ofthe following matters :—
the termination of his services by his employer ;
the question whether any gratuity or other benefits are duo
to him from his employer on termination of his servicesand the amount of such gratuity and the nature andextent of any such benefits ;
such other matters pertaining to the relationship between
an employer and a workman as may be prescribed.
Where a Labour Tribunal is satisfied after such inquiries as it
may deem necessary that the matter to which an appb'cationunder sub-section (1) relates is under discussion with theemployer of the workman to whom the application relate.1- by atrade union of which that workman is a member, the Tribunalshall defer making an order on such application until suchdiscussion is concluded or the Minister has made an orderunder section 4.
Where an application under sub-section (1) relates—
(а)to any matter which in the opinion of the Tribunal is
similar to or identical with a matter constituting orincluded in an industrial dispute to which the employerto whom that application relates is a party and intowhich an inquiry under this Act is held, or
(б)to any matter the facts affecting which are, in the opinion
of the Tribunal, facts affecting any proceedings underany other law,
the Tribunal shall make order suspending its proceedings uponthat application until the conclusion of the said inquiry or thesaid proceedings under any other law, and upon such con-clusion the Tribunal shall resume the proceedings upon thatappb'cation and shall, in making an order upon that apphcation,have regard to the award or decision in the said inquiry or thesaid proceedings under any other law.
Any relief or redress may be granted by a Labour Tribunal to a
workman upon an apphcation made under sub-section (1) not-withstanding anything to the contrary in any contract ofservice between him and his employer. ”
TAMBIAH, J.—Arnolda v. Oopalan
Section 31B (6) of the amended industrial Dispute? Act enactsas follows :—“ Notwithstanding that any person lias ceased to be anemployer—
(a) an application claiming relief or redress from such person may bomade under sub-section (1) in respect of any period duringwhich the workman to whom the application relates was em-ployed by such person, and proceedings thereon may be takenby a Labour Tribunal,
(fc) if any such application was mado while such person was suchemployer, proceedings thereon may be commenced or continuedand concluded by a Labour Tribunal, and
(c) a Labour Tribunal may on any such application order such person,to pay that workman any sum as wages in respect of any periodduring which that workman was employed by such person, oras compensation as an alternative to the reinstatement of thatworkman or as any gratuity payable to that workman by suchperson, and such order may be enforced against such person inlike manner as if he were such employer ”
The expression “ such a person ” must, in this context, necessarilymean an ex-employer, who is alive at the time the proceedings arecommenced.
The term “ employer ” is defined by section 48 of the IndustrialDisputes Act (as amended by Act No. 62 of 1957), as follows :
“ ‘employer ’ means any person who employs or on whose behalf anyother person employs any workman and includes a body of employers(whether such a body is a firm, company, corporation or trade union)and any person who on behalf of any other person employs anyworkman ; ”
The term “ workman ” is also defined in the same section as follows :
“ ‘workman ’ means any person who has entered into or works undera contract with an employer in any capacity, whether the contract isexpressed or implied, oral or in writing, and whether it is a contract ofservice or of apprenticeship, or a contract personally to execute anywork or labour, and includes any person ordinarily employed underany such contract whether such person is or is not in employment atany particular time, and, for the purposes of any proceedings underthis Act in relation to any industrial dispute, includes any personwhose services have been terminated.”
The scope and ambit of the amended Industrial Disputes Act is to giverelief or redress to a workman who is in a position to make an applicationbefore the Labour Tribunal against his employer or ex-employer who is.alive at the time of the appli cation. The Labour Tribunal derives itsjurisdiction from the amended Industrial Disputes Act. Its powers, as
TAMBIAH, J.—Arnolda v. Gopalan
well as its jurisdiction, has to be looked for within the four corners of thisstatute and liability under this statute, therefore, cannot be extended toa widow of a deceased employer, who is brought before the LabourTribunal and against whom relief is sought for a liability incurred by herlate husband. The counsel for the respondent was unable to refer me toany provision m the amended Industrial Disputes Act which enables anemployee to make an application of this nature against the widow of adeceased employer.
The counsel for the respondent urged that as the petitioner hadappeared before the Labour Tribunal and had consented to pay the saidsum, the Labour Tribunal had cognisance over this matter. The wordsof Maxwell, in this context, are apposite. He states (vide Maxwell onInterpretation of Statutes (9th Edition) page 392) : “ Consent cannot givejurisdiction and therefore any statutory objection which goes to thejurisdiction does not admit of waiver ”. Therefore, the mere fact thatthe petitioner appeared before the Tribunal and had consented to paythe said sum, does not confer jurisdiction on the Labour Tribunal whenit has, in fact, no jurisdiction conferred on it by the statute law. Thecounsel for the respondent also argued that the petitioner had registeredthe same transport business in her name in September 1959 and thesum which she had consented to pay included the wages due to therespondent for a few days in September when he was employed und?r thepetitioner. The Labour Tribunal, however, has only adjudicated on aclaim of the respondent for wages, gratuity etc., alleged to be due to himduring the period he worked under the late Mr. Bobby Arnolda, and thiscontention, therefore, is untenable.
Section 33 (2) of the Industrial Disputes Act, as amended by Act No. 62of 1957, gives the Magistrate the power to enforce any lawful order madeby the Labour Tribunal and recover the sum ordered to be paid. TheSupreme Court is given wide revisionary powers over the orders made byMagistrates without jurisdiction. In De Silva v. Commissioner of IncomeTax x, this Court revised an order made against the Managing Director dfa Company, who was ordered to pay the tax due from a limited liabilitycompany, when the Income Tax Ordinance did not empower the Com-missioner of Income Tax to impose such a tax against the ManagingDirector personally. When the Magistrate tried to enforce the orderagainst the Managing Director, this Court interfered by way of revisionand set aside the order.
There are other statutes which have imposed liability on the executoror the personal representative of a deceased person for debts or liabilities •of the deceased (vide the Income Tax Ordinance (Cap.188) and theWorkmen’s Compensation Ordinance (Cap. 139)), but it is significant thatthe Industrial Disputes Act does not impose any liability on the exe-cutor, personal representative or the executor de son tort of adeceased person for his debts or liabilities.
(1951) 53 N. L. R. 280.
GUNASEKAHA, J.—Emanis Singho v. Inspector of Police, Dompe
For these reasons, I hold that the Magistrate had no jurisdiction orpower to make an order calling upon the petitioner to pay the said sum.Acting in revision, I set aside the order of the learned Magistrate, dated3 4.61, directing the appellant to pay the sum of Us. 2,073/50 cts. on orbefore the 10th of November 1961. The appellant is entitled to Rs. 105as costs of appeal.
Order set aside.
MRS. BOBBY ARNOLDA (Bobby Arnolda Travel Service ), Petitioner, and N. R. GOP